Ballard & Kellam (No 2) [2026] FedCFamC1F 115 (26 February 2026)

(a) From 11:00 am to 5:00 pm each Sunday; and

(b) Additional time, including overnight time, as agreed from time to time between the parties in writing.

1. For purposes of changeover, it is as agreed between the parties in writing, and failing agreement at Suburb E Plaza.
2. The mother shall have the sole authority to consent to the child X being enrolled in the counselling program at the K Centre at Suburb L and shall ensure that both she and X engage fully in that program to aid in the wellbeing of X, including with the goal of improving ongoing communication between the parties in relation to issues concerning the children.
3. The father shall be at liberty to participate in the counselling program should he elect to do so.

1. The mother is permitted to arrange for the children's travel and remaining outside the Commonwealth of Australia for a holiday, or other appropriate purpose such as school or extracurricular excursion, without first obtaining the prior written consent of the father.
2. For the purposes of section 11 of the Australian Passport Act 2005 (Cth), the mother shall be permitted to apply for an Australian travel document for the children of the marriage, X, born in 2015 and Y, born in 2019 and the mother's signature and consent alone shall be sufficient to apply for a document (and any renewal of same) for either of the children.
3. Any Australian travel document for the children of the marriage, X, born in 2015 and Y, born in 2019 ("the children") will be held securely by the mother.
4. A request be sent to the Australian Federal Police to remove the names of:

(a) X, born in 2015;

(b) Y, born in 2019; and

(c) the father, Mr Kellam born in 1978;

from the list known as the Family Law Watchlist.

1. Should the mother plan overseas travel with the children, the mother will provide to the father written notice of the proposed travel arrangements at least 14 days prior to the dates of proposed travel.
2. During any periods of travel by the children outside of the Commonwealth of Australia, any orders regarding spending time with the children shall be suspended; and the children shall resume spending time with their father pursuant to these Orders seven (7) days following the children's return to the Commonwealth of Australia.

1. For the purpose of facilitating these Orders, the parents are to communicate with each other via email or text message, except in the event of an emergency, in which case the parents are to telephone the other parent as soon as possible.
2. Each parent will immediately notify the other in the event of an emergency involving the children including, but not limited to, the children suffering a serious illness or injury or being hospitalised while in their care.
3. Each parent is permitted to liaise directly with any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by the children to obtain information about the health of the children and the progress of any treatment the children may be receiving, and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
4. The parties shall keep each other informed of all medical and other professional appointments made for the children and any referrals from professionals including general practitioners and/or specialists within 24 hours of the appointment or referral having been made.
5. Each parent is permitted to liaise directly with the children's school/s to obtain any information about the children's progress at school or information about school events and educational activities or to arrange for the sending out of newsletters, photos, progress reports and any other documents provided by the school and these Orders will be sufficient authority to authorise the release of such information to both parents.
6. These orders shall act as an authority to any school or other educational and extracurricular facilities that the children may attend to provide to the parties at their request and expense such information, reports, circulars, notices, photographs and the like as the parent may reasonably request from time to time and the parties be at liberty to contact any-school/or other educational and extracurricular facilities as they see fit.

1. Each parent is restrained from using the children or either of them to reach agreements about arrangements relating to the children or either of them.
2. Each parent is restrained from denigrating the other parent in the presence or hearing of the children.
3. Each parent is restrained from discussing these proceedings with the children.
4. The father is restrained from withdrawing his consent to the specified Power of Attorney that was provided to the Country B Consulate at Sydney on 30 November 2023 in relation to the children's travel to and from Country B.
5. A copy of the orders and the accompanying reasons for judgment may be provided to:

(a) The Australian Federal Police;

(b) The court child expert;

(c) Any person providing therapeutic assistance to X.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for final parenting orders.
2. The parents (with the assistance of their lawyers) have been able to agree that final orders governing the care arrangements for their children should broadly reflect the current interim position, namely that the children live with their mother and spend time with their father.
3. The main issue which requires judicial determination relates to decision-making and particularly whether both parents should be permitted to make decisions about international travel for the children or whether those decisions should be the sole domain of the children's mother.
4. Determination of the central issue requires the Court to make findings about the circumstances in which the children and the mother remained in Country B in May 2023, while the father returned to Australia. These are civil proceedings and accordingly any findings are made on the balance of probabilities.
5. The parties do not agree about the facts and circumstances in which they travelled to Country B in March 2023 and how and why the children remained there. It is necessary to make the following observations about what is agreed:

(a) In March 2023 the mother, father and children were all Australian citizens.

(b) The children had been born in Australia.

(c) The older child was enrolled in school and was attending school in 2023.

(d) At the beginning of 2023 the parties discussed a trip to Country B to visit family. The timing of their departure coincided with the school holidays between terms 1 and 2.

(e) When the parties arrived in Country B the mother and her family went and stayed with the mother's family and the father went and stayed with his family.

(f) The mother and father did not see one another during the stay in Country B and the children did not see the father or his family.

(g) The father returned to Australia in May 2023.

(h) The mother and children remained in Country B.

(i) The mother returned to Australia in September 2023.

(j) The mother commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 16 November 2023.

(k) The matter was transferred to this Court and on 17 November 2023, I made orders which facilitated the father signing a permission for the children's removal from Country B.

(l) The children returned to Australia in December 2023.

1. It is now necessary to turn to the matters which are in contest.
2. The father filled in a NSW Education Department application for extended leave (Exhibit 2) indicating that X would be away from school until May 2023. He filled in the form on 2 March 2023. He gave as reason for travel "Family member sick".
3. Upon arrival in Country B, the mother and children were dropped at the home of the maternal grandmother. The father says that the mother requested to be dropped at her family's home when the parties arrived in Country B and he was surprised when she was not at the airport to catch the return flight home to Australia. He says he did not retain the children's travel documents.
4. The mother says she did not know the date of the return flight but presumed they would return before the commencement of Term 2. She says when she was dropped at her mother's home, she did not have the children's Australian passports or her Country B ID card.
5. Apart from the accounts which the parties have given in their affidavit material, there is some additional material available arising out of the intervention of the Australian Federal Police ("AFP") and from subpoenaed material.
6. Having read the available evidence and considered the parties' oral evidence I am satisfied that the mother was unable to remove the children from Country B. There are a number of reasons for my conclusion:

(a) The mother sent messages to the father while in Country B - copies of which she provided to the AFP. The father's affidavit evidence does not engage with her account. It makes no sense that she would message the father about the children's travel documents if she intended to remain in Country B or intended that the children would remain in Country B (or if she had the documents in her possession).

(b) The father was cross-examined about the messages the mother sent. He says he did not respond to them so as not to contribute to tensions. This explanation does not assist the Court to understand why his response to a request for him to provide the mother with her Country B ID was not simply to remind her that it was in her possession.

(c) The mother sent messages to the father's family in Country B - copies of which she provided to the AFP. The father's affidavit evidence does not engage with her account. It makes no sense that she would message the father's family unless she was trying to secure the travel documents.

(d) The father's affidavit says that the mother refused to make the children available to him in Country B. The mother tendered her messages to the father's sister which included an offer for the children to visit the father. The father said in cross-examination he did not respond to this message as he saw it as a trap.

(e) The father blocked his phone so that he was unable to receive text messages from the mother soon after their arrival in Country B. On 26 March 2023 he unblocked the mother's number. When he was asked why he had unblocked her number he said, in cross-examination, that he had done so to see if she needed anything. His answer is disingenuous since, once unblocked, the mother did in fact ask him for her Country B ID. He did not respond or provide it. He blocked the mother's number again.

(f) The father's evidence is logically inconsistent. He says that when he arrived at the airport for the return flight to Australia in May 2023 the mother "and the children were nowhere to be found". This is consistent with the mother's case - namely that she did not know when the return was scheduled and did not have the children's travel documents. She had made the second issue plain to the father. He could not genuinely have expected them to be at the airport when he had declined to speak to the mother, declined to message the mother and there had been no messages sent on his behalf.

(g) This conclusion is further supported by the father's failure to take any action after his return to Australia. If, as he contends, the mother had remained in Country B at her own election, he took no steps to even contact her and inquire about return.

(h) On 1 June 2023 the school contacted the father and left a message as X had not returned to school. The school had previously recorded X as absent because she was "going overseas because family member sick". After 1 June 2023 the school records said "[o]verseas as grandmother is very sick, unsure of return time, dad will inform us at the beginning of each month" (Exhibit 3). The only credible source of this information was the father himself. He gave evidence that his mother had been chronically unwell but there is no sense in which the children's continued stay in Country B was related to her illness (they neither saw her nor spoke with her). The narrative which he provided to the school was untrue.

(i) The mother made contact with the school (where the parties' older child was enrolled) via an App which the school was using to provide information and to exchange messages with parents and carers (Exhibit 3). She explained the circumstances in which she and the children found themselves unable to return to Australia. The mother's actions are consistent with the position she advances - namely that she had found herself unable to return. It is inconsistent with the father's position that it was the mother's choice to remain in Country B.

(j) The father gave evidence that on his return to Australia he was occupied with plans to vacate the family's apartment. He did not vacate that apartment and remained living there at the time of trial. The mother requested items from the apartment via a letter from her solicitor. The father did not supply any of the requested items. The father's actions are consistent with the mother's position, namely that the father did not intend that the mother and children would return to Australia.

(k) The father gave evidence that the mother could have waited for him to "solve my problem here" and return to Country B so that he could facilitate the return of the wife and children to Australia. The father did not contact X for her birthday which fell after he had left Country B. In the absence of any communication from the father to the mother suggestive of an intention on the father's part to return to Country B, I reject his evidence.

1. It follows from the above that I accept that the father withheld the children's travel documents. I find that he withheld the mother's Country B ID. I find that he declined, until ordered, to provide consent to their leaving Country B. He confirmed this in the witness box, giving evidence that he agreed to sign the authority "under duress". These findings impact on my consideration of whether he should be involved in the issue of and use of travel documentation moving forward.
2. It is useful to begin the consideration with acknowledgment of the fact that in cases where the Court has made a parenting order (such is the case here), the provisions of s 65Y of the Family Law Act 1975 (Cth) ("the Act") make it an offence to remove a child from Australia without the consent of a parent.
3. The mother seeks an order which would permit her to remove the children (or either of them) from Australia without the consent of the father. The father seeks an order which would require the mother to have his consent.
4. The making of these orders permitting or preventing overseas travel are parenting orders and the best interests of the children are to be paramount when considering and making the final orders.
5. Neither the mother nor the father is currently proposing that the children travel internationally on a specific identified trip, but, as observed by Harper J in Alard & Dinesh [2024] FedCFamC1F 260, there is merit in determining the issue in any event consistent with the principle set out in s 60CC(3)(l) of the Act in order to ameliorate the risk of further litigation.
6. Principles have emerged from the Court's consideration of applications relating to overseas travel. In Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434at 72,205 the following criteria were said to be applicable to adjudication of travel applications:

(a) The length of the proposed stay out of the jurisdiction;

(b) The bona fides of the application;

(c) The effects on the child of any deprivation of time spent with the non-travelling parent;

(d) Any threats to the welfare of the child; and

(e) The degree of satisfaction which the Court has that a promise made by a party to return to Australia will in fact be honoured.

1. In a similar vein, the Full Court in Line & Line [1996] FamCA 145; (1997) FLC 92-729 set out useful criteria for travel applications at [4.49]-[4.51]. Those criteria have been summarised as follows:

(a) The existence or otherwise of continuing ties between the departing parent and Australia including the ownership of property, the existence of business interest, the existence of familial and personal ties;

(b) The existence and strength of possible motives not to return, which include the level of conflict between the parties, particularly over child related issues;

(c) The existence and strength of possible motives to remain in the country of proposed travel including ownership of real estate, the existence of business interests, the existence of familial and personal ties;

(d) Whether the country of travel is a signatory to Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), signed at the Hague on 25 October 1980; and

(e) The financial circumstances of the parties.

1. Given this is not an application which is concerned with a specific planned trip, not all of the identified criteria apply.
2. The chief issue in this case is whether, given my findings about the circumstances in which the children came to be in Country B after May 2023, their father should be in a position where he is required to provide (or withhold) consent. The secondary issue is whether there is any concern established by the evidence about the likelihood of the mother removing the children from the jurisdiction permanently.
3. In the Family Report dated 4 December 2025, the Family Report writer recorded:
   1. [Mr Kellam] appeared agreeable to the children being removed from the Family Law Watchlist, saying that it was [Ms Ballard] rather than him who had originally sought this. [Mr Kellam] said that he would not be seeking to take the children overseas and that he wants [Ms Ballard] to obtain his permission before taking the children overseas. [Mr Kellam] said that this is because he has "concerns" but appeared unwilling to discuss those concerns with the CCE, saying that he had already explained them to his legal representative.

...

1. The parents appear to have complementary views on the cultural and religious needs of the children. Travel to [Country B] appears to provide an important opportunity for the children to connect with their cultural heritage and with family. [Mr Kellam] appeared unwilling to discuss his concerns regarding [Ms Ballard] taking the children overseas or his proposal that the children only be able to travel overseas with [Ms Ballard] with his consent. The CCE notes that he spoke favourably about the children's experiences during their time living in [Country B] with [Ms Ballard's] family. [Ms Ballard] expressed concern that [Mr Kellam] may use the issue of overseas travel to control her. This would appear to be an understandable concern if her account of family violence has substance. Noting the potential benefit to the children in spending time with family in [Country B], and in the absence of a clearly identified risk in them travelling to [Country B], if orders are made regarding overseas travel it is likely to be beneficial to the children if arrangements minimise their time away from school and to maintain their connection with their father, allow for communication with him while they are overseas.

1. The mother chose to return to Australia in 2023. The mother engaged with the Australian Embassy, AFP, the children's school and this Court to secure the children's return to Australia. If the mother had wanted to remain in Country B, she was able to do so. I do not accept the mother poses a flight risk.
2. The father posited that his consent, agreement and involvement may assist if the children were to be unable to leave Country B in the future. There is no evidence to satisfy me this is the case. He has consented not to revoke the permission he previously provided.
3. Given my findings, I am of the view that if the father's agreement to travel were required it is probable (based on past events) that it would be withheld. It is in the children's interests to be able to travel to see family. I am not confident that the parties could necessarily negotiate the consents required and so I propose to allow the mother to give the sole consent needed for the issue of passports, travel and removal from the country.

1. The findings which I have made about the circumstances in which the mother and children remained in Country B are serious. The offence, which is the subject of investigation by the AFP, is a human trafficking offence, often referred to as "exit trafficking". I am not tasked with determining whether the father's actions satisfy the criminal standard. I am only obliged to consider what findings are available about the conduct on the balance of probabilities.
2. Section 4AB(1) of the Act says:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(Emphasis in original)

1. I am satisfied that the findings concerning the events in Country B in 2023 satisfy the definition of family violence.
2. The mother gave evidence about other incidents of family violence which predated the travel to Country B in May 2023. The evidence was detailed and specific and she indicated she had sought the advice of third parties at the time. The father denied any occasion of violence. The mother was not cross-examined about her evidence which I accept. That said, the events of March-May 2023 by themselves provide sufficient grounding for my conclusions about which of the contested proposals is in the best interests of these children.
3. It follows that I have considered the impact of the above findings on the proposed consent orders and on the issues which are in dispute.

1. The parties originally agreed that, apart from issues of overseas travel, decision making responsibility for the children should be shared. After hearing the evidence, I was not persuaded that it is in the children's best interests that decision making responsibility be shared. The mother amended her position and sought sole decision making responsibility. The father continued to seek shared decision making responsibility.
2. The following factors persuade me that an order for shared decision making responsibility would not operate in the children's best interests:

(a) The family report writer's recording of the following exchange: "When asked about communication between the parents, [Mr Kellam] shook his head emphatically, and stated "No, I don't want to talk to her", later adding, "I never want to see her, that's it".

(b) The parents could not agree on what occurred in 2023 and maintained diametrically opposed narratives at trial;

(c) The parents agree that X has experienced psychological challenges since returning to Australia but have not been able to agree about what course of action to take to address those challenges;

(d) The father gave evidence that he would not consent to X's participation in a counselling program, designed to assist children in separated families.

1. In addition, the father said that he wants to exercise decision making responsibility because it is his right as a father. The determination as to whether a parent exercises decision making responsibility is concerned not with adult rights but with the evaluation of whether the order would be in the best interests of the children.
2. The parties otherwise ask the Court to make consent orders which provide for the children to live with their mother and spend time with their father, unsupervised, each week. They did not reduce those consent orders to a written signed document but they sought a series of common orders which I am treating as being by consent.
3. The parties' consent is not sufficient to dispose of the issue since I must be satisfied that the orders which I make are in the best interests of the children. In considering those orders I must have regard to the matters in s 60CC of the Act.
4. In DS & DS [2003] FMCAfam 365; (2003) FLC 93-165, the Court applied the dicta of the High Court in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 to parenting matters, at [26]:

... the Court need not delve too deeply into the integrity of parenting orders if both parties are apparently adequately represented, and their consent appears on the face to be informed and freely given. Freely given does not mean that a party must be happy about the compromise, but rather, having weighed up the pros and cons of pursuing a different outcome, decides that compromise is appropriate.

1. There are two significant issues which arise - the first relates to the nature of the children's relationship with the father, in particular X's relationship with her father; the second relates to the safety of the children and their carer.
2. The parties have no functional communication. I am not prepared to require decisions to be made jointly when there is no evidence capable of establishing the appropriateness or feasibility of this approach.
3. Since the return of the children to Australia, the mother has had the assistance of J Organisation workers. Ideally this will continue. She is navigating study, acquisition of English language skills, sole parenting, financial constraints and lack of family support. Her text messages in 2026 demonstrate ongoing challenges with X's behaviour.

1. Ironically, the mother has consented to orders for time in excess of that which the father has exercised. The father knows the children want to spend time with him but says he has returned them early because they are bored and his financial constraints do not permit him to spend money on activities and food. He did not demonstrate any appreciation of the fact that the mother faces similar constraints yet continues to care for the children daily.
2. In considering the impact of my findings about family violence on the proposed orders for time, I am persuaded to make the orders which the parties propose in respect of time, notwithstanding my findings, for the following reasons:

(a) I accept that the children have a good relationship with the father;

(b) I accept that the children and in particular X want to spend time with the father;

(c) I acknowledge that both parents, who have the benefit of legal representation, have asked that I make an order;

(d) I considered the evidence of the Family Report writer who said that it is important to listen to the mother as often times women in her position are well placed to make assessments regarding the safety of their children;

(e) The mother told the family report writer "that she does not currently hold any fears that Mr Kellam will harm her, due to their limited contact. Ms Ballard also stated that she feels safe because of Australian laws."

1. The mother sought an injunction to prevent the father from discussing with the children or in their presence any suggestion that she or her family were responsible for the children remaining in Country B in 2023; and from attributing blame to the mother for the period of time the children did not see the father in 2023. It would be unwise and lacking in child focus if the father did these things. However, in order to make an injunction, I must have evidence of the need for the making of an injunction. The mother's lawyers candidly accepted that there is no evidence of the father engaging in the feared conduct to date. Their argument was that the father's firm views and adherence to this narrative in the court proceedings make the order which they seek necessary. I cannot be confident that the father will share this narrative with the children. If it had been his intention to do so, then he has had the opportunity and there is no evidence it has occurred. I decline to make the order.
2. I can see utility in these reasons for judgment and orders being provided to any person who is providing therapeutic assistance to X. X finds herself in complicated circumstances which are likely to involve her reaction to her parents' separation, her desire to spend more time with her father than he has been able to accommodate, issues arising out of separation from both parents when her mother returned to Australia to secure the children's return, and the lack of family and financial support in her mother's household.
3. The mother sought an order about participation in a counselling program. The Family Report writer endorsed the appropriateness of the program. I will make an order. The father's evidence about this topic focused on his own needs rather than those of his daughter. He indicated he was not prepared to be involved. He said he did not have time for [the program] or money and wanted to "get on with my life". When asked if he was opposed to X attending, he said "if she wants to it is up to her". When asked if he would provide his consent, should it be required, he said words to the effect: "For me, I am not going to agree. I have been humiliated. You put me down and now you are asking for something from me. No." Even in re-examination he said "leave me out of it. I don't agree. I don't approve it". As a consequence, my order will be explicit in outlining that the consent of the father is not required. Should the father change his view then there remains some value in his involvement from X's perspective.
4. I am confident that it is not in the children's interests that the parents use them as messengers. The Family Report writer noted the disadvantages to the children and both parents have agreed to communicate predominantly by text. I will make an order which requires the parents to be responsible for making the arrangements as between themselves.
5. On 5 February 2026 I made an order releasing documents at the request of the AFP. At trial, I raised with the parties the release of these reasons and orders. The parties made no submissions contrary and the mother supported the making of the order, so I propose to provide these orders and reasons for judgment pursuant to Rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.